TMI Blog2016 (12) TMI 382X X X X Extracts X X X X X X X X Extracts X X X X ..... - Held that: - The show cause notice dated 08-04-2011 covers the period from 4/2006 to 2/2008, which is beyond the normal period. The Tribunal in the case of Ultratech Cement Ltd Vs CCE, Raipur [2016 (1) TMI 520 - CESTAT NEW DELHI] had occasion to analyse a similar situation where the show cause notice was issued invoking extended period - I find that there are no ground for invoking extended period of limitation and the demand, in my opinion is time barred. Appeal filed by assessee is allowed on the ground of limitation. Appeal dismissed - decided against Department. - Appeal No. E/3092/2012 & E/25278/2013 - A/31062-31063/2016 - Dated:- 7-10-2016 - Ms. Sulekha Beevi, C.S., Member (Judicial) Shri P.S.Reddy, AR for the Appellant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... side the penalty imposed. 3. The appellant has filed written submissions stating that the appeal may be disposed off after perusal of records. 4. The Ld. AR Shri PS Reddy reiterated the findings in the impugned order. He submitted that items like cement and TMT bars Aluminium sheets, coils, do not fall under the category of capital goods and therefore, the authority below have rightly denied the credit. 5. I have heard the department and perused the records. In Modi Rubber case the larger bench of the Tribunal had an occasion to consider the issue as to whether the assessee would be eligible for credit under the category of capital goods, even though the claim was put under the category of inputs and the issue was held in favour of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oking extended period. The Tribunal observed as under: 10. The Supreme Court in the case of Continental Foundation Jt. v. Commr. of C.Ex., Chandigarh-1 reported in 2007 (216) 177 (S.C.) held that the expression suppression has been used in the proviso to Section 11A of the Act accompanied by very strong word as fraud or Collusion and therefore, has to be construed strictly. Mere omission to give correct information is not a suppression of facts unless it was deliberate to stop the payment of duty. The incorrect statement cannot be equated with wilful misstatement. Similarly, the Hon ble Supreme Court in the case of Commissioner of C. Ex., Bangalore v. Karnataka Agro Chemicals - 2008 (227) E.L.T. 12 (S.C.) held that it is well settled t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the concerned officer can call for documents from the assessee wherever necessary for the scrutiny. In the present case, we find that the starting of the enquiry was stated to be scrutiny of ER-1 Returns. This was done apparently after two years. Invoking extended period for demand is not tenable in such a situation. It is stated that the appellant were under bonafide belief that credit is admissible and therefore had availed the credit. The department has no case that the appellant has not disclosed the details of credit availed in the ER- 1 Returns . So also, there is no positive act alleged against the appellant of suppression or willful mis-statement with intent to evade payment of duty. 8. In view thereof, I find that there ..... X X X X Extracts X X X X X X X X Extracts X X X X
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